Friday, February 01, 2013

Mike McQueary, who is suing Penn State for its handling of his allegations against convicted serial child molester Jerry Sandusky, has declined to comment substantively on the university’s preliminary objections to his lawsuit.

Penn State filed the objections to McQueary’s lawsuit last month, contesting the defamation and misrepresentation claims asserted by McQueary are not supported by Pennsylvania law while the entirety of his claims, including a whistleblower count, lacks specificity.

McQueary responded in the Centre County Court of Common Pleas with a filing docketed Friday, fighting back that Penn State did not aver any facts in its preliminary objections, but, rather, presented “interpretations or summaries” of the plaintiff’s facts.

And just in case there was an assertion of fact in the preliminary objections McQueary’s legal team may have missed, the plaintiff denied those, too. He asked the court for an “expeditious overruling” of the university’s objections and a briefing schedule for his case to proceed on.

When the university filed its objections, an attorney who specializes in employment-related claims said some of McQueary's claims were more viable than others, but that his complaint needed to be amended to be more specific.

McQueary, who was a graduate assistant when he claims he saw the school’s former defensive coordinator, Jerry Sandusky, sexually assault a young boy, is perhaps better known for his role as one of the state’s key witnesses in the prosecutions against Sandusky and three high-ranking administrators also facing charges than he is for his coaching experience at the school. He is suing the school for $4 million — his projected earnings over a 25-year career that was seemingly derailed by the scandal.

Sandusky was convicted of 45 of 48 counts of child sex abuse in June 2012 and is serving a minimum of 30 years in state prison.

A hearing on the preliminary objections has been scheduled for March 18.

McQueary has claimed in court filings that he lost his job with the university because he chose to come forward about Sandusky. He has also claimed that, by initially backing former athletic director Tim Curley and former vice president of business and finance Gary Schultz, Penn State and its former president, Graham Spanier, defamed him and painted him as a liar.

The university lodged preliminary objections last month taking a different position, arguing that McQueary did not allege per se defamation, nor did his October 2, 2012, complaint support a claim of defamation by innuendo.

“To arrive at an innuendo suggested by [McQueary] — i.e., that [McQueary] lied and committed perjury — a reader must take the statements concerning Curley and Schultz out of context and ascribe a meaning which contravenes the ordinary meaning and usage of the words set forth in the statements,” the university’s court filing said.

The statements at issue came from Spanier, who is also facing charges related to the reporting of Sandusky’s conduct, right after Schultz and Curley were first charged with failure to report child sex-abuse and perjury.

In his defamation claim, McQueary argued that two statements made by Spanier as the sex-abuse scandal was breaking in November 2011 “clearly suggest” McQueary was lying in his accounts regarding the now-notorious “shower incident.” In one of the statements, released on Penn State’s website, Spanier vowed his “unconditional support” to Schultz and Curley, to whom McQueary reported the allegations back in 2001.

At the time, Schultz and Curley told McQueary they would follow up on his allegations about Sandusky, alleged statements that are the linchpin of Count III of McQueary’s lawsuit. McQueary claimed in his complaint the administrators misrepresented their intentions to him in 2001 by telling him they would see to it that his allegations would be appropriately handled.

Instead, McQueary pled, the officials decided to “pursue a course of action that would avoid an investigation by any law enforcement investigator or other trained investigator.” In essence, the lawsuit alleged, the administrators buried McQueary’s report and the underlying incident to avoid tarnishing the school’s reputation.

Prosecutors, in a revised set of charges against Schultz, Curley and Spanier, allege the three men engaged in a “conspiracy of silence” to protect the school’s reputation.

McQueary’s attorney, Elliot A. Strokoff of Strokoff & Cowden in Harrisburg could not be reached for comment.

The university is being represented by Nancy Conrad of White & Williams in Center Valley, Pa. Conrad was not available for comment.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI.